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1 PRACTICE ADVISORY 1 FOR VIRGINIA CRIMINAL DEFENDERS: IMMIGRATION EXECUTIVE ACTION Prepared by Heidi Altman and Morgan Macdonald CAIR Coalition, Virginia Justice Program December 10, 2014 On November 20, 2014, President Obama announced a series of executive actions for noncitizens. These new policies will have a significant impact on your noncitizen clients immigration-related case goals. This advisory provides an overview of the relevant programs and a toolkit for understanding the impact these programs will have on immigration-related goals for your noncitizen clients. WHAT NEW PROGRAMS DID THE PRESIDENT ANNOUNCE AND FOR WHOM DO THEY MATTER? New Deferred Action programs DAPA and expanded DACA The President announced the new Deferred Action for Parental Accountability (DAPA) program to provide temporary protection from deportation to certain undocumented parents of U.S. Citizen or Lawful Permanent Resident children. He also announced the expansion of the Deferred Action for Childhood Arrivals (DACA) program that was first launched in Both programs have expansive criminal bars with no statute of limitations. Applications for these programs are not yet available but will be within six months. These programs matter for undocumented clients seeking to preserve eligibility for deferred action. New enforcement priorities and overhaul of information sharing program with local jails The Department of Homeland Security (DHS) has clarified its enforcement priorities through a new program called the Priorities Enforcement Program and announced an overhaul of the way Immigration and Customs Enforcement (ICE) interacts with local jails. ICE officials are now instructed to focus enforcement resources on individuals who fall into three newly announced priority categories. Significantly, under this new program immigration detainers will only serve as requests for notification, not detention, unless special circumstances exist such as a prior removal order. Thus far, it is unclear whether local jails will continue to detain noncitizens who have completed their sentences in response to an ICE request for notification. 1 This practice advisory does not constitute legal advice. It is intended for the use of legal professionals and is not meant to serve as a substitute for a lawyer s obligation to conduct independent analysis and provide legal advice tailored to the facts and circumstances of a client s case. Updated February 18, 2015 The work of the Virginia Justice program is financially assisted by a generous grant from the Virginia Law Foundation. The Virginia Law Foundation promotes through philanthropy the rule of law, access to justice and law-related education.

2 These changes matter for all noncitizen clients, because the new priorities will determine which convictions and jail sentences are most likely to trigger ICE to apprehend a removable client, leading to immigration detention and removal proceedings. Additionally, the offenses included in the priorities mirror the criminal bars to DAPA (but differ slightly from the bars to DACA, see chart below). HOW WILL THESE PROGRAMS IMPACT MY NONCITIZEN CLIENTS IMMIGRATION-RELATED CASE GOALS? For undocumented clients, seek to preserve DAPA or DACA eligibility Undocumented clients who are otherwise eligible for DAPA or DACA should seek to avoid a conviction that would constitute a bar to the relevant program. Eligibility requirements for DAPA and DACA are as follows: DAPA eligibility requirements: 1) Without lawful status as of 11/20/14 2) Continuously resided in U.S. since 1/1/10 2 and physically present in U.S. on 11/20/14 3) Has U.S. Citizen or Lawful Permanent Resident child born on or before 11/20/14 4) Not otherwise barred (see chart below) Expanded DACA eligibility requirements: 1) Without lawful status as of 6/15/12 and physically present in U.S. on that date 2) Continuously resided in U.S. since 1/1/10 and came before 16 th birthday 3) In school, graduated from high school or has GED 4) Not otherwise barred (see chart below) For all noncitizen clients, seek to avoid a conviction that falls within one of the enforcement priority categories Under the new Priorities Enforcement Program, ICE officers will focus enforcement resources on those who fall within the newly defined enforcement priorities (see chart below). These categories include some relatively minor offenses, including even one DUI. All removable noncitizen clients who fall within these categories including those lawfully present face likely apprehension by ICE. This risk is at its greatest while the individual is incarcerated, but also exists in the community. Apprehension by ICE leads to immigration detention and removal proceedings. Noncitizen clients who are not already subject to the enforcement priorities should, therefore, seek to avoid a conviction for an offense included in the priorities. In order to determine how the priorities will impact your noncitizen client: 1) Determine if your client is already an enforcement priority (see chart below); and 2) If s/he is not, seek a case outcome that does not fall within one of the priority categories. 2 There is contradictory guidance in the existing memos issued by DHS with regard to whether individuals must have been in the United States since December 31, 2009 or January 1, However, this ambiguity only matters for noncitizens who arrived in the United States on January 1, 2010, thereby potentially missing the cut-off by one day. 2

3 IS THE ANALYSIS FOR THESE NEW PROGRAMS DISTINCT FROM THE ANALYSIS PERTAINING TO REMOVABILITY AND ELIGIBILITY FOR RELIEF?! The enforcement priority categories and the bars to DAPA and DACA are distinct from the criminal grounds of deportability and inadmissibility and the criminal bars to relief found in the Immigration and Nationality Act (INA), although in some cases (such as the aggravated felony bars) there is overlap. For noncitizen clients it is important to analyze potential case outcomes under the INA as well as the new executive action programs even though the analyses will intersect in many ways. Avoiding the criminal bars of deportability and inadmissibility, for example, remains a vital goal for noncitizen clients, particularly those lawfully present. For those who are already removable, it is important to both avoid the new enforcement priority categories and preserve eligibility for relief from removal under the INA. Key conceptual distinctions between the grounds of removability and DAPA/DACA eligibility include: 1) Definition of sentence: Although suspended sentences count as sentences pursuant to the definition of sentence within the INA, they do not count as sentences for the purpose of determining whether a misdemeanor offense bars DACA or DAPA due to a sentence of 90 days or greater. 2) Felony versus misdemeanor: Although it doesn t matter whether an offense is classified by the sentencing jurisdiction as a felony or misdemeanor for determining whether it constitutes an aggravated felony or triggers other grounds of removal, the distinction is now extremely important in determining whether an individual constitutes an enforcement priority or is eligible for DACA or DAPA. PRACTICE TIPS When seeking to avoid the new enforcement priorities or preserve DAPA or DACA eligibility: 1) Plead felony charges down to a misdemeanor 2) For misdemeanor offenses: a. Avoid misdemeanors defined as significant (see chart below) b. Remember that even one DUI is a significant misdemeanor c. For non-significant misdemeanors, keep sentence to less than 90 days jail time d. Avoid a noncitizen client s third misdemeanor conviction You will do your noncitizen clients a great service by screening them for DAPA or DACA eligibility and referring them to a local immigration service provider if they may be eligible. Individuals with any previous involvement in the criminal justice system should speak directly to an immigration attorney. Virginia residents should contact Hogar Immigrant Services (of Catholic Charities) at Please encourage noncitizen clients to avoid notarios and other immigration-related scams! 3

4 SEE CHART DETAILING THE NEW ENFORCEMENT PRIORITIES AND BARS TO DAPA AND DACA BELOW. For more details, see Questions? Contact Morgan Macdonald at CAIR Coalition at 4

5 WHAT CONVICTIONS TRIGGER THE ENFORCEMENT PRIORITIES AND CONSTITUTE BARS TO DAPA AND DACA? Gang-related offenses Felony conviction Aggravated felony conviction (see 8 U.S.C. 1101(a)(43)) 3 or more misdemeanor convictions excluding non-dui traffic offenses Significant misdemeanors, including 3 : Domestic violence offense Sexual abuse or exploitation Burglary Unlawful possession or use of firearm Drug distribution or trafficking Driving under influence Any misdemeanor with > 90 days or 90 days jail time (not including suspended sentences) Juvenile delinquencies and expungements Triggers Enforcement Priority Category? if convicted of offense for which element was active participation in a criminal street gang (felony defined by sentencing jurisdiction) Bar to DAPA? if convicted of offense for which element was active participation in a criminal street gang (felony defined by sentencing jurisdiction) No (excluding state offenses for which essential element is immigration status) (excluding state offenses for which essential element is immigration status) Bar to DACA? No per se bar for gang-related conviction but gang membership considered an indicator of threat to public safety (felony conviction defined as any offense punishable by > 1 year imprisonment) ( 90 days) ( 90 days) ( > 90 days) Unclear to date, no guidance issued on this point Unclear to date, no guidance issued on this point Not automatic bar 3 DHS has issued little guidance regarding how the categories of offenses that constitute significant misdemeanors are defined. For example, we do not know with certainty if a conviction under Virginia for driving after illegally consuming alcohol will constitute a driving under influence significant misdemeanor. Based on practitioners experiences with the DACA application process, however, defense attorneys should assume that the categories will be applied broadly to any related offense and, therefore, a plea to any offense that may be relevant to these categories is unsafe. Updated February 18, 2015 The work of the Virginia Justice program is financially assisted by a generous grant from the Virginia Law Foundation. The Virginia Law Foundation promotes through philanthropy the rule of law, access to justice and law-related education.

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